Beyond the Safe Harbours: Harmonising Substantive Intermediary Liability for Copyright Infringement in Europe

With the adoption and subsequent national implementation of the E-Commerce Directive’s safe harbour regime, the architecture set up for intermediary liability in Europe has become two-tiered: at a first stage, it is necessary to examine whether a given intermediary attracts, in its pursuit of a certain activity, civil liability according to the standards in place in national legislation and only then, in the second instance, must the inapplicability of any immunity be established. As a result, although it provides a veneer of approximation by immunising intermediaries under certain circumscribed conditions, the Directive does not harmonise the underlying substantive liability norms which decide whether the safe harbours will be necessary or redundant. Instead, these are determined by national tort law, leaving ample room for national divergences between the regimes of the various Member States. This paper examines the applicable tort rules currently in place in three selected jurisdictions of the UK, France and Germany, picking out their commonalities and divergences and revealing the confusion that governs the topic across European borders. The intention is to examine the structures in place that could allow for the eventual European harmonisation of substantive intermediary liability beyond the safe harbours.